Spencer v. Bell

• Decision Date: 18 October 1891
• Citation: 109 N.C. 39,13 S.E. 704
• Parties: Spencer v. Bell et al.
• Court: North Carolina Supreme Court

13 S.E. 704

109 N.C. 39

Spencer

v.Bell et al.

Supreme Court of North Carolina.

Oct. 18, 1891.

Claim and Deliveuy—Affidavit—Bond— Waiver—Instructions—Judgment.

1. In a claim and delivery action instituted by "J. M. S., " an affidavit of claim signed, "J. M. S., per D. M. S., " is sufficient, under Code N. C. § 322, which provides that such affidavit shall be made "by the plaintiff or some one in his behalf."

2. In such action, an undertaking of plaintiff for delivery of the property, which is signed by neither plaintiff nor his sureties, but which contains a justification signed by each surety, in which he makes oath that he is worth a certain sum above his liabilities and exemptions, cannot be objected to on the trial, under Code N. C. § 325, which provides that if the defendant fail, within three days after the service of the affidavit and undertaking, to give notice that he excepts to the sufficiency of the sureties, he shall be deemed to have waived all objection to them.

3. Where only one witness testified as to the value of the property claimed, it was error to refuse to charge that, if the jury believed the testimony of that witness, they should accept his valuation.

4. Code N. C. § 481, provides that, in an action for the recovery of personal property, judgment for the plaintiff may be for the recovery of possession, or for the value thereof, in case a delivery cannot bo had, and the damages for the detention. Held, in an action to recover certain corn, alleged to be worth $45, that a judgment, decreeing that "plaintiff recover of the defendants the sum of $50, the value of said corn, to be discharged upon the payment by the defendants to the plaintiff of the sum of $20.86, with interest thereon, " was unauthorized, where the only finding of fact by the jury was that the corn was worth $50.

Appeal from superior court, Beaufort county; Hunry R. Bryan, Judge.

This is an action of claim and delivery by J. N. Spencer against Bell and Bishop to recover "one certain lot of corn, in the barn on the Bell farm, " of the alleged value of $45, originally commenced before a justice of the peace in the county of Beaufort, and carried by appeal to the superior court of said county, and tried before Bryan, J., at the February term, 1891, of said court. The affidavit required in the application for the delivery of the possession of the corn is signed as follows: "J. M. Spencer. Per D. M. Spencer. Sworn before me this 1st day of February, 1889. W. D. Saduler, J. P." In the transcript of the justice of the peace it is stated: "The plaintiff appeared by his agent, D. M.Spencer." There is what purports to be an undertaking of the plaintiff for delivery of property as required by section 324 of the Code, with two sureties, but it is not signed by either the plaintiff or the sureties; but there is a justification, signed by each surety, in which he makes oath that he "is worth, over and above his liabilities and his property exempted by law, the sum of $——." In the superior court, before the trial, defendants moved to dismiss the claim and delivery proceedings upon the following grounds: First, because the affidavit purported to have been made by plaintiff J. M. Spencer, per D. M. Spencer; second, because the plaintiff gave no bond before the issuing of the order to seize the property, as required bylaw. Motion denied, and defendants excepted. The plaintiff moved and the court granted him leave to amend his summons so as to demand therein a certain lot of corn, of the value of $45, for advances. In the trial in the superior court plaintiff claimed the possession of a certain lot of corn cultivated by and in the possession of defendant Bell, by reason of certain advances made to defendant Bell by plaintiff as landlord. Defendant Bishop claimed the corn in controversy as mortgagee of Bell. The issues hereinafter recited were framed by the judge without objection by defendants. Defendant Bell denied that plaintiff was his landlord, or made any advances to him for the year 18X8, in which year the corn was cultivated. The plaintiff testified: "I rented the land to Bell in 188S, the year in which the corn was cultivated. Defendant Bell gave me a mortgage, in 1887, upon his crop of 1888, which mortgage was not paid in full. In first part of 1888 defendant Bell told me he could not pay the mortgage of 1887 and have enough to farm on in 1888. Defendant Bishop had a second mortgage on his crop of 1887. Defendant Bell told me if both Bishop and myself closed down on him, and took his corn, he could not farm that year, but if we did not he could do so. I told him, as far as I was concerned, I would advance balance he owed me on next crop if defendant Bishop would agree not to shove him and take what he had. Afterwards we saw Bishop, and he agreed to indulge his mortgage also." Plaintiff claimed balance due upon this mortgage as advances to cultivate the crop of 1888, which balance was...